FULLWELL PROPERTIES LTD v. GREAT POWER INTERNATIONAL DEVELOPMENT LTD

DCCJ3302/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3302 OF 2005

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ASSESSMENT  OF  DAMAGES

1.  In this action the plaintiff claims against the defendant for outstanding arrears of rental, management fees and rates.  The plaintiff further claims for losses incurred for the tenant’s failure to reinstate the premises after the property was surrendered to the landlord on 31 March 2005.

2.  The defendant failed to acknowledge service and final and interlocutory judgment was entered against the defendant on 30 August 2005 for the outstanding rental, mesne profits, arrears of rates and management fees from 1 January 2005 to 31 March 2005, with damages to be assessed for the plaintiff’s loss. 

3.  At today’s hearing of assessment of damages, Mr Wong, the manager of the plaintiff, gave evidence in support of the plaintiff’s loss under clause 8(17) of the tenancy agreement.  It is the evidence of Mr Wong that the tenant vacated the premises without reinstating the premises to its previous condition upon handing over of tenancy in 2003 in breach of the tenancy agreement.  The plaintiff therefore had to execute the reinstatement before the plaintiff was able to let out the suit premises on 1 June 2005. 

4.  I am satisfied, from the evidence adduced, that because the defendant had failed to institute reinstatement of the premises to its previous condition, the plaintiff had suffered loss and damage.  The loss assessed is as follows.

5.  Loss of use from 1 April 2005 to 31 May 2005 at $13,689 plus $465 rates and management fees at $6,084 for two months, $40,476.  Reinstatement costs, $35,000.  Unpaid electricity charges, $532.  The total comes to $76,008.

6.  Under the terms of the tenancy agreement the plaintiff shall refund to the defendant tenant the rental, management fee and rate deposit of $61,425 and the electricity deposit of $2,600 upon settlement of the outstanding claims against the tenant. 

7.  In the present case, the defendant failed to respond to the Letter Before Action from the landlord.  It further failed to file an acknowledgement of service of the writ and had never attended any of the court proceedings for hearing in this action.  For this reason, it may be months before the plaintiff is able to locate the defendant for execution.  For the aforesaid reason, I would allow the deduction of the deposit, referred to above, for the damages assessed herein.  Therefore, the total sum after deduction of the deposits is $11,983 with interest from the date of writ to the date of judgment at half judgment rate and thereafter at full judgment rate.  Costs assessed at $23,060 to the plaintiff.